1. The draft Telecommunication Bill, 2022

Does the new Bill dilute the powers of the Telecom Regulatory Authority of India? What will be the effects of including OTT communication services within the definition of “telecommunication services”?

The Ministry of Communications released a draft of the Indian Telecommunication Bill, 2022 last week for public comments. The draft is an attempt by the government to update the extant regulatory framework in keeping with the advancements and challenges in the sector.

The current draft of the Bill expands the definition of “telecommunication services” to include OTT communication services. As a consequence of this, OTT telecommunication services may be subject to the same licensing conditions as TSPs. If the OTT communication services are required to obtain the same licence, they would also be subject to a number of conditions such as maintaining ‘know your customer’ details of their users, adhering to certain encryption regulations and allowing lawful access to the government of their equipment and networks.

For the first time, a specific provision enabling the government to order suspension of internet power has been introduced through the draft Bill. Civil society has however, raised concerns that the proposed provision gives the government power to order internet shutdowns while failing to incorporate safeguards such as judicial oversight.

Trishee Goyal

The story so far:

The Ministry of Communications released a draft of the Indian Telecommunication Bill, 2022 last week for public comments. Since then, the draft has generated a significant amount of discussion on various changes that it proposes to make to the current telecom regulatory framework. The Minister for Communications, Ashwini Vaishnaw, has stated that the Bill would become law in the next 6-10 months.

What is the draft Indian Telecommunication Bill, 2022?

The draft Indian Telecommunication Bill is an attempt by the government to update the extant regulatory framework in keeping with the advancements and challenges in the sector. This was much needed given that the three main legislations that occupy this domain are considerably outdated, with the most recent of these having been enacted more than 70 years back. These legislations are the Indian Telegraph Act enacted in 1885, the Indian Wireless Telegraphy Act enacted in 1933 and the Telegraph Wires (Unlawful) Possession Act in 1950. The Indian Telecommunication Bill looks to repeal these legislations and “restructure the legal and regulatory framework” for the telecommunications sector.

How does the draft telecommunication Bill affect over-the-top communication services?

Over-the-top (OTT) communication services refer to services that provide real time person-to-person telecommunication services. Some popular examples of these include messaging platforms like Whatsapp, Telegram, Signal, Messenger, Duo, Google Meet etc. These platforms use the network infrastructure of telecom service providers like Airtel, Vodafone and Jio and provide features that compete with telecommunication services such as voice calls and SMS services. Telecom Service Providers (TSPs) allege that these features result in a double whammy for them as they cut into their sources of revenue (voice calls, SMS) while not having to deal with infrastructure and licensing costs that they have to undertake. Therefore, TSPs have been demanding a level playing field with OTT services.

The current draft of the Bill expands the definition of “telecommunication services” to include OTT communication services. As a consequence of this, OTT telecommunication services may be subject to the same licensing conditions as TSPs. Under the extant framework, TSPs have to be issued the Unified Access Service Licence (UASL) for them to be able to provide telecom services in India. If OTT communication services are required to obtain the same licence, they would also be subject to a number of conditions such as maintaining ‘know your customer’ details of their users , adhering to certain encryption regulations and allowing lawful access to the government of their equipment and networks.

What are some of the consumer protection measures in the draft Bill?

To curtail the ever-increasing incidence of spam calls and frauds, the draft Bill proposes that the identity of the person communicating using any form of telecommunication services shall be available to the user receiving such communication. This would mean that unlike now where only the phone number of the person making the communication is displayed, going forward the name of the person would also be displayed. As per the Communications Minister, this facility would not only be available for voice calls but also for users of OTT communication services.

The draft Bill obligates licence holders to identify the users of its service through a verifiable mode of identification. To ensure that a user provides correct details, the draft Bill penalises providing wrong identification details with a ₹50,000 fine and suspending the operation of the specific mobile number or barring the person from using the telecom service for a certain duration. Further, the draft Bill also provides that commercial communications which are advertising and promotional in nature should be made only with the prior consent of a subscriber. While the Telecom Regulatory Authority of India (TRAI) has previously issued the “Telecom Commercial Communications Customer Preference Regulations” in 2018, spam communications and sharing of contact details without any safeguards continues to be rampant. Its inclusion in the draft Bill takes it out from the purview of TRAI and gives government the power to take stringent measures against violators.

How does the draft Bill impact the position of the TRAI?

The TRAI was set up in 1997 as an independent and specialised regulator for the telecom sector. Given that the government is a major player in the telecom sector in various roles such as provisioning of services, licensing and allocating spectrum, the need was felt to institute a regulator that is at an arms’ length from the government to ensure a level playing field, fairness for private TSPs and for the protection of consumer interests.

However, the current draft considerably dilutes TRAI’s position in a number of ways reducing it from a regulatory to a recommendatory body. First, the government would no longer be required to seek recommendations from the TRAI before issuing licences. Second, it also removes the power of the TRAI to requisition from the government information or documents that are necessary to make such recommendations. Moreover, the Department of Telecommunications (DoT) will no longer be required to refer back to TRAI the recommendations for reconsideration — those recommendations that it does not agree with, as it was required to do previously. The removal of such powers would not be keeping with international practice where telecom regulators are endowed with a greater degree of independence to ensure that investor confidence and consumer protection is maintained in the market.

What are the draft Bill’s provisions on internet shutdowns?

For the first time in the Indian legal framework, a specific provision enabling the government to order suspension of internet power has been introduced through the draft Bill. Currently, suspension of internet services is ordered under the Temporary Suspension of Telecom Services (Public Emergency and Public Safety) Rules, 2017 that have been made under the Indian Telegraph Act, 1885. However, civil society has raised concerns that the proposed provision gives the government power to order internet shutdowns while failing to incorporate safeguards such as judicial oversight that have been recommended by the Standing Committee on Information Technology.

How does the Bill facilitate TSPs?

The draft Bill clears up a lot of confusion around the allocation of spectrum. It lays down that while the primary route for allocation of the spectrum is auction, when spectrum is to be allocated for certain functions of the government such as defence or transportation, the administrative process is to be followed. It also allows the TSP to exploit its spectrum resource fully by enabling sharing, trading, leasing, surrendering or returning unutilised spectrum. The Bill also simplifies the process for restructuring, merging or demerging.

On the issue of right of way (the legal framework for setting up telecom towers), it mandates that land owned by a public entity should be available expeditiously unless there is an express ground of refusal. This is likely to face opposition from States which have the power to administer lands within their territorial jurisdiction. Lastly, the draft allows the funds under the Universal Service Obligation Fund to be utilised for other purposes such as urban areas connectivity, research etc, expanding its current mandate from the limited aspect of enhancing rural connectivity.

The writer is a research fellow at the Centre for Applied Law and Technology Research, Vidhi Centre for legal policy

2. Editorial-1: After the floods, Bengaluru needs to clean up its act

The floods have abated in Bengaluru. As individuals struggle to clean their houses, the silt on the roads left behind by the receding water — now a fine dust that flies in the air choking us — is a reminder of those difficult times.

Various analyses now attribute Bengaluru’s flooding to more rainfall — in the future, it is expected to increase to an average of 1,000 mm per annum from the current 650 mm per annum — and unplanned, overcrowded growth that is destroying the greenery, tanks and wetlands.

Clearly, we must decongest the city, plant more trees, save wetlands, even reclaim them, desilt drains, enlarge sewers, deconcretise pavements and stop the clogging of waterways with unsegregated garbage. The State government announced tough measures such as the demolition of unauthorised encroachments impeding drainage streams in the city, but quickly backed away. It now plans to divert drains to avoid already built-up areas. This is not a solution because nature will carry on inundating encroachments until people abandon them of their own volition.

The ‘grease’ of the system

Everybody has a favourite villain to blame — from the builder mafia to the migrant, from the lack of spatial planning to uncontrolled violations of building bye-laws. Yet, the herd of restive elephants in the room is led by a particularly malevolent matriarch: corruption.

Everybody decries corruption outwardly, but submits to it meekly. Fear apart, it is also a matter of convenience, of time saved and of benefits, often through the violation of rules. Some justify corruption as the grease that keeps the fast-growing economic engine of Bengaluru whirring smoothly. However, corruption cripples economic growth in ways not readily apparent. Apart from transferring inordinate wealth to the undeserving, it creates a slew of vested interests, who resist anti-corruption process reforms. Understanding how corrupt officials, politicians, regulators and private players act in concert is essential to successfully implementing corruption-reducing strategies. Further, we must understand that the corrupt often use the honest to further their subversive agendas. Examples abound.

Most game theories concerning the dynamics of corruption reveal that the original sinner is often, paradoxically, a well-intentioned government. A good, but misguided government could make narrowly rigid rules, thus giving venal politicians and bureaucrats the leeway to bend them. For example, building bye-laws are so labyrinthine that the strictest law-abiding citizen cannot comply with them. That provides opportunities for agents who bypass the system’s rigidities. Ironically then, corruption actually reduces red tape. Hence, not many complain about resorting to bribing to get work done through a parallel, ‘efficient’ system.

One could also have a good government that aims to reduce red tape, making overly lax rules capable of being interpreted differently. In this ‘anything goes’, system, frontline officials invent discretionary practices to create impediments and seek bribes. ‘You show me your face, and I’ll show you the rule,’ is an old and cynical adage.

The loopholes

Next, our narrow, legal definition of corruption enables many in a corrupt system to escape culpability. Indian law recognises only corrupt acts by public servants to be ‘acts of corruption’ under the law. As private corruption is not criminalised, many government actions are outsourced to private agents, who collect ‘handling fees’ on behalf of their partners in crime within the government. Witness builders’ agents, who collect bribes openly to have properties registered, even as the government IT enable such processes, aiming at efficiency and honesty.

E-Governance is often not the effective solution as claimed. E-enabled systems often only relocate the locus of corruption; they do not solve all of it. Large databases, such as land records, when moved to paperless systems are vulnerable to manipulation. Encroachments are enabled when old records are destroyed and new ones are created. Power shifts from land administrators to the one who possesses the digital signature. The data entry operator becomes an all-important and corruptible cog in the wheel.

How then do we tackle corruption? How do we destroy the entrenched resistance to true reforms, which harmonises citizen and collective interest in protecting the environment and promoting a healthy economy? Worldwide experience reveals no easy way out. The battle against networks of corrupt interests of politicians, bureaucrats, the private sector and regulators, has been a hard fought one. There are uneasy transitions and fake equilibriums in this battle of attrition; the corrupt do not cede ground easily.

Kick-start these strategies

Successful anti-corruption strategies rely on actions across three fronts.

First, regular assessments and evaluations of ongoing anti-corruption measures, eliminate the possibility of declaring false victories. They help in red-flagging new corruption opportunities, even as old ones are eliminated. A cycle of ongoing process reforms gets initiated.

Second, a genuine regime of whistle-blower protection assures honest citizens, politicians, bureaucrats and judges of protection, as they otherwise fear the adverse repercussions for uncovering illegal activities. Whistle-blowers today are exposed to danger. They draw attention to themselves and are vulnerable to attacks, ranging from character assassination, to counter accusations, to physical harm. Confidence-assuring whistle-blower protection measures can lead to exposure of more corruption, particularly at higher levels. Swift punishment of the guilty, could instil a sense of fear and reduce the feeling of impunity that the corrupt enjoy.

Third, there has to be a conscious move towards promoting ethical behaviour. Unfortunately, moral science education has been tainted by religious colours; but surely, are we not able to develop agnostic, religion-neutral ways of educating young people to be empathetic, kind, mindful of their larger responsibilities to the community, be honest, and intolerant of corruption?

All these strategies have been tried successfully in countries and cultures that have been able to reduce corruption substantially. This in turn has translated into better quality of services, and thus, a better quality of life. In turn, this nurtures creativity and bolsters the economy. Surely, Bengaluru deserves such a future.

However, there is one necessary ingredient remaining, going by the experience of cities and countries that have cleaned up their acts. If anti-corruption strategies are to be successful, the process needs enlightened leadership. No extent of process changes will succeed if the leadership — it need not be a single leader, but a network of high-ranking individuals cutting across the government and non-government sectors — is corrupt or insincere. In a democracy, waiting for such a leadership to emerge miraculously from so-called benevolent dictators is wishful thinking. The emergence of such a leadership depends upon us.

3. Editorial-2: India lacks a complete paediatric cardio-care service

It is overwhelming for parents to be told that their child may have heart defects. It is worse when the child does not get treated in time due to lack of paediatric cardiac care in the vicinity of his/her home.

Congenital Heart Disease (CHD), which the Centers for Disease Control and Prevention (CDC), Atlanta, U.S., acknowledges to be the most common congenital disorder, is responsible for 28% of all congenital birth defects, and accounts for 6%-10 % of all the infant deaths in India.

Paediatricians say timely medical intervention can save 75% of these children and give them normal lives. The lack of a national policy for the treatment of cardiovascular diseases in children keeps a huge number outside the ambit of treatment. It is estimated that over 1,00,000 children keep getting added to the existing pool of children awaiting surgery.

According to the Pediatric Cardiac Society of India (PCSI), the prevalence of congenital cardiac anomalies is one in every 100 live births; or an estimated 2,00,000 children are born with CHD every year. Only 15,000 of them receive treatment. At least 30% of infants who have complex defects require surgical intervention to survive their first birthday but only 2,500 operations can be performed each year. A case in point is the premier All India Institute of Medical Sciences (AIIMS), where infants are waitlisted till 2026 for cardiac surgery.

A distressing perception, ground realities

A retired health bureaucrat says that there has been more neglect and little improvement in child health care because creating a comprehensive paediatric cardiology care service is usually considered economically unviable — it is resource intensive and requires infrastructure investment that politicians and policymakers choose to evade.

There are 22 hospitals and less than 50 centres in India with infant and neonatal cardiac services. Geographically, these centres are not well distributed either. A 2018 cardiology department report of AIIMS, highlighted how South India accounted for 70% of these centres; most centres are located in regions with a lower burden of CHD. For instance, Kerala has eight centres offering neonatal cardiac surgeries for an estimated 4.5 lakh annual childbirths. Populous Uttar Pradesh and Bihar, with an estimated annual childbirth of 48 and 27 lakh births per annum, respectively (Census of India, 2012), do not have a centre capable of performing neonatal cardiac surgery.

It taxes the vulnerable and the marginalised

For 600 districts with a 1.4 billion population, there are only 250 paediatric cardiologists available. The doctor to patient ratio is an abysmal one for half-a-crore population. According to the Annals of Pediatric Cardiology journal, the United States had 2,966 paediatric cardiologists in 2019 — a ratio of one per 29,196 population. Jammu and Kashmir, Himachal Pradesh, Jharkhand, Punjab, Odisha (besides U.P. and Bihar) have a higher CHD burden but do not have paediatric cardiologists in the government sector. There are four paediatric cardiologists for 38 Delhi government hospitals. Now, Jaipur (Rajasthan), Raipur (Chhattisgarh), Coimbatore (Tamil Nadu), Madurai (Tamil Nadu), Bhubaneshwar (Odisha), Palwal (Haryana), Indore (Madhya Pradesh), are on the map of paediatric cardiac care, but largely in the private sector.

Apart from the low number of paediatric cardiologists and cardiac surgeons, and critical care centres, poverty is another barrier before treatment. Transporting sick neonates from States with little or no cardiac care facilities to faraway centres for accurate diagnosis and treatment burdens parents financially.

It is not just unaffordability but also inaccessibility that constraints paediatric services. In addition, there is the non-availability of crucial equipment that is essential for diagnosis of heart diseases in the unborn. Accentuating the problem is the general lack of awareness about early symptoms of CHD among parents.

Antenatal checks are crucial

The Child Heart Foundation, a non-governmental organisation working in Siliguri (West Bengal), Jalandhar (Punjab) and Delhi, with underprivileged children with CHD, has been flagging the need for fetal echocardiography.

Paediatricians say antenatal detection of congenital anomalies is crucial for neonatal care and management. But certain congenital defects such as accurate heart health assessment are not visible in a normal ultrasonography of an unborn baby. Fetal echocardiography done in a pregnant woman of 18 to 24 weeks allows better visualisation of the structure and function of the heart. There are programmes worth emulating such as Kerala’s ‘Hridayam (for little hearts)’, aimed at early detection, management and support to children with CHD or the Tamil Nadu Chief Minister’s Comprehensive Health Insurance Scheme offering free specialised surgeries.

The National Health Protection Scheme (Ayushman Bharat), is expected to financially assist 10 crore poor families but has still to take off. So far, Maharashtra, Karnataka, Gujarat and Andhra Pradesh have apparently got going.

A 2018 article by the Department of Cardiothoracic Cardiology, AIIMS, states, “paediatric cardiology is not a priority area in the face of competing demands for the resources”.

Nothing seems to have changed, and as another World Heart Day (September 29) has passed by, we need to act fast to help India’s many children in need.